Yaroslav Kulik, of ART DE LEX, participated in the round table “New amendments to the fourth antimonopoly package”

On 5 March 2015, the Noncommercial Partnership Competition Support and FAS of Russia conducted the round-table discussion about the amendments FAS proposed for the second reading in the State Duma of the fourth antimonopoly package.

Yaroslav Kulik, a member of the general council of Noncommercial Partnership Competition Support and head of the Competition Practice at the ART DE LEX law firm, reported on amendments to Article 17 about competition support.

He described the exclusion of auctions for private companies from antitrust control and innovations in antitrust control in the areas of anticompetitive agreements for the organizers of auctions or customers and bidders.

Kulik noted that the first amendment, an exception regarding the scope of Article 17, about trade in private companies, will not change law enforcement practices and that such cases are rare.

Part 1 of Article 17 involves the organizers of trading agreements as well as customers and traders. Currently, they are included in Articles 11 and 17, which results in misunderstandings. Administrative responsibility for violation of Article 17 of the Law on Protection of Competition for government bodies comes under Article 14.9 of the Administrative Code.

According to Kulik, for the first time, the law includes anticompetitive agreements between the customer (organizer) and the bidder, which should provide a greater degree of legal certainty on the issue of administrative responsibility. Furthermore, such agreements must comply with Parts 1 and 3 of Article 14.32 of the Administrative Code of the Russian Federation. The article provides for administrative penalties in the amount of 0.1 to 0.5 times the original price of the initial value of the bid.

Kulik also focused on administrative liability for legal persons, according to Federal Law No. 223-FZ, of 18 July 2011, The procurement of goods and services by particular types of legal entities, for example, The law about the purchases by government bodies. For example, in the area of government procurement, the customers are state authorities that are not business entities, within the strict meaning of Paragraph 1 of Article 14.32 of the Administrative Code, which means that the “turnover” fine does not pertain to them. Yet, the customers and organizers of trades in the Law on procurement of state-owned companies act, as a rule, as business entities and are subject to prosecution for illegal agreements, in accordance with Article 17 of the Law on anticompetitive agreements and Part 1 of Article 14.32 of the Administrative Code. The same violation may entail different repercussions, which is unacceptable.

According to Kulik, the amendments to the Administrative Code of the Russian Federation are reasonable and should bring more transparency and administrative responsibility to the organization of tenders in order to eliminate collusion.

A detailed review of the bill is available at http://artdelex.ru/eng/news/russian-president-adopted-a-law-about-the-amendments-to-investments-in-the-objects-of-strategic-significance.

An outline of Yaroslav Kulik’s presentation (in Russian) is at: http://artdelex.ru/rus/events/partner-i-rukovoditeli-antimonopolinoi-praktiki-art-de-lex-yaroslav-kulik-vystupil-na-kruglom-stole-novye-popravki-k-chetvertomu-antimonopolinomu-paketu.